The Texas Supreme Court heard oral argument on an important case affecting access to the courts for people without money, Campbell, et al. v. Thomas Wilder, Tarrant County District Clerk, at 9:00 a.m. this morning. The crux of the case is this: Whether the Tarrant County District Clerk can assess costs of court against people who filed affidavits of indigency with the clerk. The Justices had some interesting questions for the attorneys. I summarize the issues in the case below, the significant public policy interests at stake, and give you my opinion.
Court clerks maintain court records, and they make sure that people pay for utilizing the courts. Court clerks oversee case files. And, court clerks send out notices to people involved in lawsuits about their court dates and whether they owe money to court.
Procedurally, if you (a pro se litigant who does not have an attorney) want to sue someone because they owe you money or to stop them from doing something, you go to the clerk of the court with your lawsuit papers, and you hand them those papers to file along with a check for the filing fees. In Travis County, for example, it costs about $300 to file a lawsuit in district court, and you can view the various fees here.
Divorce is a type of lawsuit. Divorce is the number one type of lawsuit that people file without hiring a lawyer. The Supreme Court of Texas has put out some standard forms for pro se (or, people without attorneys) litigants looking to get a divorce, keeping in mind the reality that many people cannot afford to hire an attorney to end a marriage. You can find those forms here.
Married couples that want a divorce do not have to stay married if they are broke. Even though the clerk of the court has a fee list, and is supposed to charge $X to file for divorce, if the married couple is indigent, the clerk is supposed to waive those fees. Texas Rule of Civil Procedure 145 provides a way for people without money to access the courts. A person that cannot afford to pay court costs fills out a form outlining their bills, debts, and income. If that form demonstrates that the person is indigent, then the person can still file a lawsuit, but without having to pay the clerk any money. Indigent just means that the law recognizes you cannot afford to pay for the lawsuit. Here is an example.
In the Campbell v. Wilder case, Tarrant County accepted indigent affidavits from people who filed for divorce. The fact that the people were indigent was not contested. The people then got divorced. In the final judgment, the standard form paperwork would include a statement that the parties would pay their own costs.
Based on that “husband will pay his costs, and wife will pay her costs” language, the Tarrant County District Clerk – Thomas Wilder – started sending out debt collection letters to divorcees that had filed affidavits of indigency. Meaning – Husband filed for divorce and swore to the clerk that he had no money (or that his income did not match his expenditures such that he could not pay for the costs). Clerk accepted that affidavit and allowed Husband to file for divorce without paying the costs. Husband and wife divorced and stopped being husband and wife. Then – because of the boilerplate language on the judgment that they would be responsible for their costs, the Clerk sent out “Clerk’s Certification of Payment Default” letters to former husband and wife.
In the “Clerk’s Certification of Payment Default” letters (and one was used as an exhibit for oral argument this morning that you can view here), the divorcees were told that their property would be seized by the sheriff if they didn’t pay for their court costs – court costs that the State of Texas says they don’t have to pay because they were indigent when they filed for divorce.
Some of the people who received these debt collection letters thought they were going to be jailed if they didn’t pay. These letters went out months after the divorces, and in some cases were sent years after the people got their divorces. You can read about them here in the Plaintiff’s brief.
The Tarrant County District Clerk, Thomas Wilder, argued that these notices were perfectly appropriate because it is the clerk’s job to give effect to a judge’s order. And, the orders in these cases said that the parties would be responsible for their costs. In none of the cases, however, had the parties been found to be able to afford any costs – the affidavits of indigency had not been contested. The language in the judgments was just standard form language – without a specific finding that the parties could afford the costs.
MANY letters were sent to indigent divorcees by the Tarrant County District Clerk, Thomas Wilder. And those divorcees sued to enjoin Mr. Wilder from collecting this debt because it is a debt that does not exist. The indigent litigants also sought mandamus and declaratory relief. Basically, they asked the courts to tell Mr. Wilder to stop shaking down poor people for costs that Texas law says they don’t owe.
The Clerk argued successfully in the court of appeals that injunctive relief was inappropriate because the indigent litigants did not file in the right court. They were supposed to challenge the costs in the trial court that entered the judgment. Because, argued the Clerk, they filed their suit in a different court, they could not get injunctive relief. The Clerk's attorney admitted, however, that mandamus and/or declaratory relief was available regardless of which court the suit was filed in. The problem with mandamus and declaratory relief is that the Clerk wouldn't be prohibited from continuing to send out the debt collection letters. Injunctive relief, on the other hand, would prevent Mr. Wilder from sending any more of these letters to people that had a valid affidavit of indigency on file.
Lee DiFilippo originally filed the lawsuit, and was responsible for building the record. Lee has nurtured this case like it is her flesh-and-blood baby. She is completely committed to access to justice for people who lack money (and that is what a poor person is – just a human being without cash). Lee’s own practice involves providing limited scope legal services for people who need some guidance from a lawyer, but can’t afford a full retainer. Former Chief Justice Wallace B. Jefferson handled oral argument in favor of the indigent litigants in front of the Supreme Court this morning.
Justice Guzman asked many interesting questions, pointing out to the Clerk’s lawyer that she herself had once been a family court judge. Justice Guzman made the point that if one is indigent, even if the divorce decree says that the parties pay their own costs, nothing would be owed – because of Rule 145. If there is an uncontested affidavit of indigency on file, no costs are owed.
The Texas Supreme Court can hold that injunctive relief is appropriate in this case, the trial court had subject matter jurisdiction, and remand the case for a full trial on the issue of whether the Tarrant County District Clerk should be stopped from hustling money out of poor people. The Court of Appeals ruled against the indigent litigants on this point, with a conscientious dissenting justice that explained that what the Tarrant County District Clerk is doing “locks the courthouse door for thousands of indigent parties in Texas who need it the most.” Wilder v. Campbell, 430 S.W.3d 474, 485 (Tex. App.--Fort Worth 2014, pet. obviously granted), which you can read here.
At one point, a justice inquired whether other clerks were doing this in other counties. Former Chief Justice Jefferson stated that he did not know. You can find the Texas Tribune's account here.
I think if Tarrant County is doing this, there has got to be other Texas clerks out there who see budget shortfalls and try to shake money out of indigent litigants. There is no way Tarrant County is the only one, out of 254 counties. Rule 145 is incredibly important. Imagine a world where you are only allowed to file for divorce if you have money. Imagine the number of people who would separate and never be able to get married again because they’re still married to the asshole they left 25 years ago!
There is already a significant justice gap in Texas, meaning that there is a large number of people who work, are not considered to be in poverty, but cannot afford to pay for an attorney. I would include myself in that category – there is no way I could scrounge $7,500-$10,00 for an attorney right now, given my student loans and fluctuating income. I’m not indigent. But I would have to handle any sort of litigation pro se. Lucky for me I have legal training. Most do not.
Given the already large number of people who cannot afford an attorney, closing the courthouse doors to poor people entirely is absolutely unconscionable. After all, poor people are just people without cash. Forcing them to stay married, even to abusive spouses (yes, there were people who divorced abusive spouses who received Wilder’s debt collection letters), is ridiculous. I trust that the Texas Supreme Court will do the right thing in this case to keep those courthouse doors open, and send a message to Wilder and any other clerk who has the same bright idea.
Finally, for those of you who vote: Please pay attention to local elections. The clerks in your county have a hell of a lot more power than you think, and they have more of a real day-to-day impact on your community than does the President. Most people don't even know the local judges' names, let alone the clerks. Those local elections - in many ways - are more important than national elections. See for example - everyone's favorite clerk in Kentucky.